United States District Court, N.D. Illinois, Eastern Division
November 3, 2005.
SHARON ADELMAN-REYES, Plaintiff,
SAINT XAVIER UNIVERSITY AND BEVERLY GULLEY, Defendants.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Beverly Gulley's
("Gulley") motion to dismiss Count IV of Plaintiff Sharon
Adelman-Reyes' ("Adelman-Reyes") complaint. For the reasons
stated below, we deny the partial motion to dismiss Count IV.
Adelman-Reyes alleges that she began working for Defendant
Saint Xavier University ("St. Xavier") in an administrative
position during the 1998-1999 academic year. Adelman-Reyes claims
that throughout her employment with St. Xavier, Gulley was Dean
of the School of Education ("SOE") and was her immediate supervisor. According to Adelman-Reyes, in 2001,
Adelman-Reyes' position was converted to a tenure-track Assistant
Professor and, by 2003, Adelman-Reyes had been promoted to the
position of full-time Associate Professor. Adelman-Reyes alleges
that during her time as a full-time Associate Professor, no
specific concerns had ever been raised, by Gulley or anyone else,
about her teaching abilities, scholarship, service to St. Xavier,
or her religious beliefs. Adelman-Reyes further alleges that,
during this time, no one had complained to her about her
performance or progress toward tenure.
Adelman-Reyes alleges that, as of Passover in 2003, Gulley and
Christopher Chalokwu ("Chalokwu"), the Vice President for
Academic Affairs at that time, were aware that Adelman-Reyes
practiced the Jewish faith. Adelman-Reyes alleges Gulley and
Chalokwu became aware of Adelman-Reyes' religious beliefs when
she informed them she would not be attending a student awards
ceremony due to the ceremony's temporal proximity to Passover.
Adelman-Reyes claims that throughout her time at St. Xavier she
was approached by numerous people who informed Adelman-Reyes that
Gulley had made anti-Semitic remarks, derogatory comments about
Adelman-Reyes' religious beliefs and practices, and derogatory
comments about other minority members of St. Xavier.
Adelman-Reyes claims that in September 2003, she emailed Chalokwu
to inform him of and complaint about Gulley's alleged harassment.
In the email, Adelman-Reyes claimed that Gulley was harassing her
because of her religious beliefs. Adelman-Reyes alleges that the St. Xavier Faculty Handbook
("Handbook") and St. Xavier Faculty Bylaws ("Bylaws") articulated
contractual rights and responsibilities between St. Xavier and
Adelman-Reyes. According to Adelman-Reyes, the Handbook required
Gulley to evaluate Adelman-Reyes annually and that the reviews
were supposed to address her progress toward tenure.
Adelman-Reyes further claims that Gulley did not comply with
these requirements when Gulley failed to provide Adelman-Reyes
any written feedback that would put her on notice that she may
not receive tenure or that her employment with St. Xavier was at
In the fall of 2003, Adelman-Reyes applied for tenure and the
SOE Rank & Tenure Committee recommended that Adelman-Reyes'
application be granted. Adelman-Reyes alleges Gulley knew that if
she wrote a negative recommendation letter, the University Rank &
Tenure Committee ("URTC") would not recommend Adelman-Reyes for
tenure. Adelman-Reyes claims that Gulley then prepared a report
recommending Adelman-Reyes be denied tenure based on concerns
regarding Adelman-Reyes's collegiality, contribution to
committees, failure to keep her promise to continuously
contribute to St. Xavier's intellectual life, and low enrollment
in Adelman-Reyes' program. Adelman-Reyes alleges that Gulley
refused to provide Adelman-Reyes with a copy of this report until
after the URTC had made its recommendation. At the time Gulley
made the report, Adelman-Reyes alleges that Gulley was aware of
Adelman-Reyes' complaints about Gulley's harassment.
Adelman-Reyes further alleges that Gulley prepared and submitted
the report in response to Adelman-Reyes' complaints about Gulley's harassment.
Adelman-Reyes contends that Gulley had never given her any
negative feedback before Adelman-Reyes received the report in
March of 2004. In March 2004, the URTC recommended Adelman-Reyes
be denied tenure. Adelman-Reyes alleges that Chalokwu and St.
Xavier President Dr. Judith Dwyer ("Dwyer") both affirmed the
recommendation that Adelman-Reyes be denied tenure and that the
decisions of the URTC, Chalokwu, and Dwyer were all influenced by
the negative report submitted by Gulley.
In April 2004, Adelman-Reyes filed a grievance in regard to the
denial of her tenure. The St. Xavier Faculty Grievance Committee
("UFGC") reviewed Adelman-Reyes' grievance and concluded that
Adelman-Reyes had not been given an opportunity for a "full and
fair hearing." The UFGC then recommended a review by the Formal
Hearing Committee ("FHC"). The Handbook provides a procedure for
a formal hearing when one files a grievance relating to a denial
of tenure. Adelman-Reyes claims that she complied with all of the
prerequisites of this procedure and a three-member panel of the
FHC was assembled. Adelman-Reyes asserts that St. Xavier was
required to ensure that the provisions for promotion, tenure, and
grievances submitted to the FHC were followed. According to
Adelman-Reyes, the Handbook requires the FHC to assemble all
evidence relating to the grievance and authorizes the FHC to
conduct independent investigations. Adelman-Reyes further alleges
that the Handbook requires the FHC to use hearing procedures
consistent with those recommended by the American Association of University
Professors Policy Documents and Reports ("AAUP").
Adelman-Reyes claims that no hearing was ever conducted in
accordance with the required hearing procedures relating to her
grievance. Adelman-Reyes claims that all of the evidence relating
to her grievance was not assembled by the FHC, and no independent
investigation was conducted by the FHC. Adelman-Reyes also claims
that the FHC did not apply the hearing procedures recommended by
the AAUP. In February 2005, Dwyer allegedly accepted the
recommendation of the FHC and, as a result, Adelman-Reyes claims
that she will neither receive tenure at St. Xavier, nor, as of
May 23, 2005, will she be employed by St. Xavier. Adlemen brought
the instant action and includes in her complaint a claim alleging
discrimination against her because of her religion, in violation
of Title VII of the Civil Rights Act of 1964 ("Title VII"),
42 U.S.C. § 2000e et seq., a Title VII retaliation claim, a breach
of contract claim, and tortious interference with prospective
economic advantage claim ("tortious interference"). Gulley has
moved to dismiss the tortious interference claim.
Federal Rule of Civil Procedure 12(b)(1) requires a court to
dismiss an action when it lacks subject matter jurisdiction.
United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942,
946 (7th Cir. 2003). If the concern of the court or party challenging the subject matter jurisdiction is that "subject
matter jurisdiction is not evident on the face of the complaint,
the motion to dismiss pursuant to Rule 12(b)(1) would be analyzed
as any other motion to dismiss, by assuming for purposes of the
motion that the allegations in the complaint are true." Id.;
see also Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995)
(stating that when reviewing a motion to dismiss brought under
Rule 12(b)(1), this court "must accept as true all well-pleaded
factual allegations, and draw reasonable inferences in favor of
the plaintiff"). However, if the complaint appears on its face to
indicate that the court has subject matter jurisdiction, "but the
contention is that there is in fact no subject matter
jurisdiction, the movant may use affidavits and other material to
support the motion." Id. For the purpose of determining subject
matter jurisdiction, this court "may properly look beyond the
jurisdictional allegations of the complaint and view whatever
evidence has been submitted on the issue to determine whether in
fact subject matter jurisdiction exists." Ezekiel,
66 F.3d at 897 (quoting Capitol Leasing Co. v. Federal Deposit Insurance
Corp., 999 F.2d 188, 191 (7th Cir. 1993)). The burden of proof
in regards to a Rule 12(b)(1) motion is "on the party asserting
jurisdiction." United Phosphorus, Ltd., 322 F.3d at 946.
Gulley moves to dismiss the tortious interference claim on the
basis that it is preempted by the Illinois Human Rights Act
("IHRA"), 775 ILCS 5/1 et seq. The IHRA provides that "[e]xcept as otherwise provided by law, no
court of this state shall have jurisdiction over the subject of
an alleged civil rights violation other than as set forth in this
Act." 775 ILCS 5/8-111(C). The IHRA preempts Illinois tort claims
that are "inextricably linked to a civil rights violation" under
the IHRA. Maksimovic v. Tsogalis, 687 N.E.2d 21, 23(Ill. 1997).
If a course of conduct "would be actionable even aside from its
character as a civil rights violation because the IHRA did not
`furnish the legal duty that the defendant was alleged to have
breached,' the IHRA does not preempt a state law claim seeking
recovery for it." Krocka v. City of Chicago, 203 F.3d 507, 516
(7th Cir. 2000) (quoting Maksimovic, 687 N.E.2d at 22).
In the instant action, Gulley claims that Adelman-Reyes'
tortious interference claim is inextricably linked to her rights
under the IHRA. The IHRA has several provisions that are
applicable to the various claims in the instant action. The IHRA
renders illegal any "discrimination against any individual
because of his or her . . . religion. . . ." 775 ILCS 5/1-102(A).
The IHRA, makes it unlawful to "[r]etaliate against a person
because he or she has opposed that which he or she reasonably and
in good faith believes to be unlawful discrimination, sexual
harassment in employment or sexual harassment in higher
education, discrimination based on citizenship status in
employment, or because he or she has made a charge, filed a
complaint, testified, assisted, or participated in an
investigation, proceeding, or hearing under this Act. . . ."
775 ILCS 5/6-101(A). The IHRA also prohibits discrimination in regard to tenure in employment by providing
that "[i]t is a civil rights violation . . . [f]or any employer
to refuse to hire, to segregate, or to act with respect to
recruitment, hiring, promotion, renewal of employment, selection
for training or apprenticeship, discharge, discipline, tenure or
terms, privileges or conditions of employment on the basis of
unlawful discrimination or citizenship status."
775 ILCS 5/2-102(A).
For a tortious interference claim under Illinois law a
plaintiff must establish the following: "1) the plaintiff's
reasonable expectation of entering into a valid business
relationship; 2) the defendant's knowledge of the plaintiff's
expectancy; 3) purposeful interference by the defendant that
prevents the plaintiff's legitimate expectancy from being
fulfilled; and 4) damages to the plaintiff resulting from the
defendant's interference." Delloma v. Consolidation Coal Co.,
996 F.2d 168, 170-71 (7th Cir. 1993). See also Voelker v.
Porsche Cars North America, Inc., 353 F.3d 516, 527-28 (7th
Cir. 2003) (defining the elements for a tortious interference
claim as "(1) the existence of a valid and enforceable contract
between the plaintiff and another; (2) the defendant's awareness
of this contractual relation; (3) the defendant's intentional and
unjustified inducement of a breach of the contract; (4) a
subsequent breach by the other, caused by defendant's wrongful
conduct; and (5) damages").
Adelman-Reyes alleges in her complaint that "she was in a
contractual relationship with [St. Xavier] and had a reasonable
expectation of continuing her employment with [St. Xavier] both
by a virtue of her position with [St. Xavier], the length of her employment and her documented superior
performance." (Compl. Par. 54). Adelman-Reyes also alleges that
"[b]ased on the feedback she had received during her employment
with [St. Xavier], [Adelman-Reyes] had a reasonable expectation
of receiving tenure." (Compl. Par. 54). Adelman-Reyes further
contends that despite Adelman-Reyes' alleged contractual
relationship with St. Xavier, Gulley "intentionally and
deliberately wrote a negative recommendation letter recommending
that [Adelman-Reyes] be denied continuous tenure." (Compl. Par.
56). Adleman-Reyes further alleged that Gulley, without a
"legitimate business purpose . . . induce[d] [St. Xavier] to deny
[Adelman-Reyes'] continuous tenure" and to "cause her employment
with [St. Xavier] to be terminated." (Compl. Par. 57).
Adelman-Reyes alleges that Gulley interfered with the
contractual relationship between St. Xavier and Adelman-Reyes by
writing the negative letter of recommendation. Adelman-Reyes'
tortious interference claim is based upon a right to continued
employment, which is independent of her rights under the IHRA.
Adleman-Reyes contends that she has a contractual relationship
with St. Xavier based upon an implied agreement that she would
continue to be employed if she performed her work in a
satisfactory fashion. Adleman-Reyes also alleges that the
Handbook contained provisions for contractual rights regarding
her entitlement to future employment. Such alleged obligations
and contractual relations exist wholly separate from the IHRA
rights regarding discrimination, and the tortious interference
claim and breach of contract claim could stand in their own right
without the discrimination claims.
Gulley argues that the tortious interference claim is
inextricably linked to the IHRA because the alleged motivation of
Gulley has some relation to the rights provided under the IHRA.
Adelman-Reyes alleges that she had complained to Chalokwu because
Gulley was "harassing her because of her religious
beliefs. . . ." (Compl. Par. 19). Adelman-Reyes also alleges that
Gulley "Prepared the negative recommendation of tenure document
in response to [Adelman-Reyes'] opposition to and complaints
about Dean Gulley's harassment." (Compl. Par. 22). However, the
underlying motive is not relevant in regard to the tortious
Under Illinois law, a plaintiff bringing a tortious
interference claim is required to allege "malice . . . if the
defendants' actions were privileged." Delloma, 996 F.2d at 170.
Gulley does not even argue that Defendants' actions were
privileged and thus does not even contend that malice is a
pertinent issue in this action. Also, regardless, the malice that
Gulley may have held towards Adelman-Reyes stands separate from
the protections under the IHRA. The IHRA does not forbid
malevolent thoughts, but rather prohibits active discrimination
based upon such unlawful types of malice.
Also, in regard to the term "malice or "malicious" in the
context of a tortious interference claim, the term "does not
carry the ordinary meaning of vindictive or malevolent; it means
intentionally and without justification." Delloma,
996 F.2d at 171. Such a definition of malice removes the intent even further
from any of the rights under the IHRA. The definition of the term "malicious"
stated in Delloma is in fact in apposite to the protections
under the IHRA because there is no justification for
discriminating against an individual based, for example, upon the
individual's religion. Although Gulley's motivations in writing
the letter of recommendation may have been discriminatory and
have been a violation under the IHRA, such underlying motivations
by Gulley are not pertinent to the tortious interference claim.
As the Seventh Circuit makes clear, under Illinois law the
pertinent inquiry in regard to the tortious interference claim is
whether the defendant intended to "purposeful[ly] interfere"
with Adelman-Reyes' "legitimate expectancy. . . ." Delloma,
996 F.2d at 170-71. The Seventh Circuit and the Illinois Appellate
Courts also refer to the pertinent intent as an "intentional and
unjustified inducement of a breach of the contract." See, e.g.,
Voelker, 353 F.3d at 527; Chapman v. Crown Glass Corp.,
557 N.E.2d 256, 262 (Ill.App.Ct. 1990). Adelman-Reyes alleges
specifically in her complaint that her expectancy relates to her
continued employment and tenure. (Compl. Par. 54). The pertinent
inquiry in this case is thus whether or not Gulley intended to
interfere with the contractual relationship between Adelman-Reyes
and St. Xavier and induced a breach.
In addition, simply because there are claims in an action
relating to unlawful harassment, discrimination, or retaliation
does not mean that any tort claims brought under the same facts
in the case are pre-empted by the IHRA. See, e.g., Krocka,
203 F.3d at 516-17; James F. Jackson v. Local 705, Intern. Broth. of
Teamsters, AFL-CIO, 2002 WL 460841, at *14 (N.D. Ill. 2002) (stating that in
determining the preemption issue "it does not matter that the
conduct giving rise to the tort claim could also support an IHRA
claim"). Finally, the Supreme Court of Illinois has stated that
the pertinent inquiry for the preemption issue is whether "a
plaintiff can establish the necessary elements of the tort
independent of any legal duties created by the Illinois Human
Rights Act." Maksimovic, 687 N.E.2d at 24. As is explained
above, Adelman-Reyes is able to establish the elements for her
tortious interference claim independent of and without a
reference to the duties under the IHRA.
In ruling that the tortious interference claim is not preempted
by the IHRA claim we are not finding that Adelman-Reyes actually
has any contractual rights or that she does not have any
contractual rights. At the motion to dismiss stage, we are
required to limit our analysis to the allegations made in the
complaint and accept such allegations as true. United
Phosphorus, Ltd., 322 F.3d at 946; Ezekiel, 66 F.3d at 897. As
this action proceeds, Adelman-Reyes will have the burden of
pointing to sufficient evidence that supports her claims.
Based on the foregoing analysis, we deny Gulley's partial
motion to dismiss the tortious interference claim (Count IV).
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